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May 8, 2014

"In Defense of Capital Punishment: A 'botched' execution does not render the death penalty illegitimate"

The title of this post is the headline of this potent commentary by Jonah Goldberg at National Review. Here are excerpts:

Last week the state of Oklahoma “botched” an execution. Botched is the accepted term in the media coverage, despite the fact that Clayton Lockett was executed. He just died badly, suffering for 43 minutes until he eventually had a heart attack.

Oklahoma’s governor has called for an investigation. President Obama asked Attorney General Eric Holder (who is seeking the death penalty in the Boston Marathon bombing case) to review the death penalty. Obama’s position was a perfectly defensible straddle: “The individual . . . had committed heinous crimes, terrible crimes, and I’ve said in the past that there are certain circumstances where a crime is so terrible that the application of the death penalty may be appropriate.”

On the other hand, Obama added: “I’ve also said that in the application of the death penalty . . . we have seen significant problems, racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to be innocent. I think we do have to, as a society, ask ourselves some difficult and profound questions.”

As a death-penalty supporter, I agree. Although I’m not sure we’d agree on what those questions — and answers — should be. As for Lockett, he was entitled to a relatively painless and humane execution under the law. As for what he deserved in the cosmic sense, I suspect he got off easy....

Capital-punishment opponents offer many arguments why people like Lockett shouldn’t be executed. They point out that there are racial disparities in how the death penalty is administered, for example. This strikes me as an insufficient argument, much like the deterrence argument from death-penalty supporters. Deterrence may have some validity, but it alone cannot justify the death penalty. It is wrong to kill a man just to send a message to others. Likewise, Lockett, who was black, wasn’t less deserving of punishment simply because some white rapist and murderer didn’t get his just punishment.

The most cynical argument against the death penalty is to point out how slow and expensive the process is. But it is slow and expensive at least in part because its opponents have made it slow and expensive, so they can complain about how slow and expensive it is....

Some believe the best argument against the death penalty is the fear that an innocent person might be executed. It’s hotly debated whether that has ever happened, but it’s clear that innocent people have been sent to death row. Even one such circumstance is outrageous and unacceptable. But even that is not an argument against the death penalty per se. The FDA, police officers, and other government entities with less constitutional legitimacy than the death penalty (see the Fifth and 14th amendments) have made errors that resulted in innocent deaths. That doesn’t render these entities and their functions illegitimate. It obligates government to do better.

Radley Balko, a death-penalty opponent, in a piece in the Washington Post, says that ultimately both sides of the death-penalty debate have irreconcilable moral convictions. I think he’s right. As far as I’m concerned, Lockett deserved to die for what he did. Everything else amounts to changing the subject, and it won’t convince me otherwise.

There are various parts of this commentary that I consider astute (e.g., I call Lockett's execution ugly, not botched, because he did end up dead), and others that seem to me quite peculiar (e.g., if deterrence cannot justify the death penalty, why can it be used to justify any state punishment?). But I find especially valuable this commentary's emphasis that "irreconcilable moral convictions" may be at the base of all modern heated death penalty debates.

Notable missing, though, is the parallel reality I see that irreconcilable political convictions seemingly influence both supporters and opponents of the death penalty. Notably, in this commentary from last year, Jonah Goldberg effectively explains why the "only people in the world who don’t want the government to get much smarter are the ones working for it." In light of that astute observation, how can he have any confidence that, in response to the ugly Lockett execution, governments can or will fulfill their "obligat[ion] to do better"?

Of course, similarly telling and curious view about government powers and possibilities often seems to infest liberal critics of the death penalty. As Goldberg highlights, a lot of claims about inevitable government dysfunction drives a lot of the modern abolitionist movement. But the modern death penalty is arguable the most effectively and comprehensive regulated of all government activities, and in other settings folks on the left often respond to government and regulatory failings by calling for more government and regulation, not less.

I make these points not to chide either supporters or opponents of the death penalty, but rather to encourage folks to notice not only that irreconcilable moral convictions are often involved in death penalty debates, but also that these moral convictions often regularly eclipse typical political convictions in this setting.

Comments

What Goldberg seems to suggest about racial disparities --- better apply the death penalty in a racially motivated way than not at all --- also seems crazy. What if prosecutors only let non-Jewish people plead their reckless driving misdemeanors down to violations? Maybe your first preference would be to make sure that nobody gets to plead their reckless driving misdemeanors to violations. But, barring that, the next-best option would obviously be to let Jewish people plead the same as gentiles. Decisively the worst option would be to maintain the racist status quo. That seems a basic application of equality before the law, an old Hayekian saw (http://econfaculty.gmu.edu/wew/articles/99/equalitylaw.htm) that I'm sure Goldberg has adverted to when suitable to his purposes.

Posted by: Miles | May 8, 2014 12:09:22 PM

If dying makes an executed not "botched," the person can suffer for half-a-day in agony as the try and try and try again, and it won't be "botched" which is a perverse usage of the term. "Botched" at some minimally includes those people who die, but it is a major FUBAR to get us there. If not, if they rammed his head with a crowbar a few times to make sure he was not dead, not botched. That sounds moronic, because it is.

If something is only "in part" the result of the anti side, it is not particularly cynical for them to point out to the problem. And, since the delays are for mixed reasons, often to try to ensure due process (wrong or not such claims are in certain cases, they are not made merely to harp on delays ), it's not the height of cynicism to point them out. It is a cost of the death penalty & if you think it is overall not worth it, the delays just add to why it is not worth the candle.

Under our system, "deserving to die" isn't enough. It has to be done right. This includes if you are a conservative and you trust the government to use its power to kill in this fashion. It is a conservative value to have the government do what is deserved in a correct way or not do it at all. In other contexts, when the government can't do something properly, by conservative lights, they use that as a reason against trusting the government. But, as he says, there is a divide here. The rules work a bit differently.

If dying makes an executed not "botched," the person can suffer for half-a-day in agony as they try and try and try again, and it won't be "botched" which is a perverse usage of the term. "Botched" at some minimally includes those people who die, but it is a major FUBAR to get us there. If not, if they rammed his head with a crowbar a few times to make sure he was dead, not botched. That sounds moronic, because it is.

If something is only "in part" the result of the anti side, it is not particularly cynical for them to point out to the problem. And, since the delays are for mixed reasons, often to try to ensure due process (wrong or not such claims are in certain cases, they are not made merely to harp on delays), it's not the height of cynicism to point them out. It is a cost of the death penalty & if you think it is overall not worth it, the delays just add to why it is not worth the candle.

Under our system, "deserving to die" isn't enough. It has to be done right. This includes if you are a conservative and you trust the government to use its power to kill in this fashion. It is a conservative value to have the government do what is deserved in a correct way or not do it at all. In other contexts, when the government can't do something properly, by conservative lights, they use that as a reason against trusting the government. But, as he says, there is a divide here. The rules work a bit differently.

"... that irreconcilable moral convictions are often involved in death penalty debates,..."

Only a left wing academic would fail to see, not moral convictions. Rent seeking. They ended the death penalty in 1976. Lawyers were immediately fired from their appellate jobs, by the hundreds. So they backed up, allowing the death penalty with endless regulation and oversight, endless, pointless reviews. Instead of reviews by seasoned investigators seeking mistaken convictions, they debate legal loopholes, and created, fictitious ideas.

Reviews by investigators would reduce the error rate. They are not interested in accuracy. They want endless appellate briefs on fictitious points of law. Nor is there any difference from political affiliation. The biggest pro-criminal biases are in the conservative Justices.

The article does make the point made int he Comments years ago, on behalf of abolitionists. Deterrence violates the Fifth Amendment due process rights by punishing a person to prevent the crime of a person not known to him, and in the future if happens at all. This not only fair, it is nutty, insane.